Opinion: Prop. 46 Will Hold Medical Professionals Accountable

2 Nov 2014

Receiving health care in California can be dangerous because in many circumstances the law exempts medical professionals from being held accountable for their mistakes. Proposition 46 would partially close this exemption.

Medical professionals are immune from paying damages for their negligence to the extent that they cause non-economic damages, such as pain and suffering, above $250,000. The $250,000 limitation was a respectable limitation when it was instituted in 1975, but not now after approximately 40 years of inflation on everything else.

The $250,000 limitation is further reduced because the law requires that damage awards must be paid over the victims’ expected remaining life and can be terminated–short of full payment–if the victim dies before receiving all of the award. The elderly and the very young are particularly vulnerable. Two somewhat extreme examples are illustrative:

(1) A young girl who suffers when a doctor negligently removes the wrong ovary or who is permanently disfigured by malpractice would in most cases have no economic damages (except for perhaps the cost of psychological therapy for depression and anxiety regarding not being able to have children, or because she is now unattractive). Instead, she would only have non-economic damages, which the current law would limit to $250,000. Assuming that her remaining life expectancy was 50 years, and that she was awarded the full $250,000, she would only receive $5,000 (less attorney fees) per year for 50 years until she is paid the full award. In no way does $5,000-per-year cover her grief. And the present value of a 50-year annuity of $5,000 per year is substantially less than $250,000–less than one-third the value. If she dies before the 50 years are up, the payments would terminate.

(2) An elderly retired person who suffers malpractice does not lose future earnings because the victim is already retired. Assume, for example, the elderly victim’s life expectancy was an additional 5 years. If she is awarded the full $250,000, the patient would receive $50,000 (less attorney fees) per year for 5 years–but only if the elderly victim lives for 5 more years! Having been injured by the careless act, the patient’s life could be shortened and thus the doctor would be saved from paying out the full award.

Moreover, it can easily cost a patient $100,000 just to get to trial to cover the cost of medical experts, legal depositions, and other costs. It is generally impossible to win a lawsuit without incurring such costs. Thus, due to these costs and due to the vicissitudes and risks of litigation, even in circumstances of extremely outrageous medical behavior, it is rarely practical or realistic for a victim to sue.

Health care providers–and also insurance companies controlling providers–know that they are practically immune from being sued in many circumstances, which may skew their decision making to save them money. Most dangerous is where the patient belongs to a health maintenance organization (HMO). The insurance arm of the HMO pressures and incentivizes doctors to not spend the HMO’s money on marginal circumstances. Medical professionals and HMOs, knowing that they will not be sued, may refuse treatment or alter the care, or simply act in a more careless manner, making it outright dangerous for patients to be treated in California.

Proposition 46 would substantially improve the quality of health care in California. Proposition 46 is about making providers accountable for their negligence, and thus making health care in California a much safer experience.